Patent troll claims ownership of interactive Web—and might win

The mother of all patent troll trials unfolds in Texas where Google, Amazon …

The city of Tyler, Texas, is better known as the nation’s “rose capital” than as a hotspot of the technology industry. It’s a quiet, conservative city of about 100,000, full of wide streets and big trucks.

This week, though, Tyler is the site of a remarkable battle over the history of the World Wide Web—a trial that could affect the future of e-commerce. The federal courthouse downtown is packed to the brim with dozens of lawyers, representing the world’s biggest Internet companies, including Yahoo, Amazon, Google and YouTube.

A succession of pioneers of the early Web—including the Web’s father, Tim Berners-Lee himself—has flown in from around the world to denounce two software patents they believe threaten the future of Web innovation. East Texas has transformed itself into something of a haven for patent suits over the past several years, but by any standard, the trial now underway is an extraordinary circus of dark suits.

How did all the trouble start?

Michael Doyle, a low-profile Chicago biologist, claims that it was actually he and two co-inventors who invented—and patented—the "interactive web" before anyone else, while they were employed by the University of California back in 1993. Doyle argues that a program he created at the UC’s San Francisco campus, which allowed doctors to view embryos over the nascent World Wide Web, was the first program that allowed users to interact with images inside of a Web browser window. The defendants hotly contest that, saying that it was programs like Pei-Yuan Wei's pioneering Viola that first offered this functionality.

Today, Doyle and his lawyers say he’s owed royalty payments for the use of a stunning array of modern Web technologies. Watching online video, having a "search suggestion" pop up in a search bar, or even rotating an image of a sweater you might want to buy on an online shopping site—all are said to infringe on the idea-space of Doyle and his company, Eolas Technologies.

To those who follow high-profile tech litigation, the name Eolas may sound familiar. The company sued Microsoft back in 1999, winning a $521 million jury verdict in 2003 that shook the tech world. While that verdict was overturned on appeal, Microsoft ultimately settled rather than re-trying the case. The full settlement amount wasn’t disclosed, but the University of California revealed that its cut was $30.4 million; since an Eolas lawyer at one point described UC’s take as 25 percent, minus expenses, it suggests the company got well over $100 million from that case.

The Microsoft verdict got the attention of tech community in a big way. Eolas was denounced in some quarters as a "patent troll"—the company has never launched its own Web browser, or any commercially successful technology that’s well known, for that matter.

Groups that felt the impact of the patent started to take action. The W3C, the global Web standards group, contacted the patent office directly, sending a letter signed by Berners-Lee warning that unless the Eolas patent was invalidated it would cause the "disruption of global web standards" and cause "substantial economic and technical damage to the operation of the World Wide Web."

But while the PTO initially rejected the Eolas patent claims in reexams, Doyle and his lawyers were dogged in insisting they had the right to some kind of patent claim. The office ultimately reversed course—a fact now being trumpeted to an East Texas jury by Eolas' lawyers.

Eolas' lawyers have actually used the struggle against the patent to bolster their claim that it’s an important invention. Mike McKool, the lead lawyer for Eolas, told the jury during opening statements that tech companies have been attacking the patent ever since 1995—when it was still three years away from issuing.

Eolas becomes Texan to pursue a new suit

By the time Eolas settled its case against Microsoft in 2007, the business of “patent trolling” had begun to coalesce around a few popular venues, most notably the small towns of East Texas. While the Microsoft suit was underway, the company applied for a second patent, which it received on Oct. 6, 2009. The same day, Eolas filed suit—in East Texas—against more than 20 big companies, including Apple, Playboy, Perot Systems, Blockbuster, Citigroup, eBay, and Frito-Lay—all for using the "interactive web."

Most of those companies settled; eight remain as defendants. In addition to the Internet companies mentioned above, GoDaddy, JC Penney, Staples, and CDW Corp are in the case. In documents filed last month, Eolas lawyers said they will seek damages of more than $600 million against those eight companies, with more than half of it coming from Google and Yahoo.

By 2009, although Doyle continued to live in Chicago, Eolas had transformed itself into a Texan company, at least on paper. It incorporated in the state, and moved its headquarters—just two rooms in a small office building—to Tyler. The company moved one full-time employee, its licensing officer, to Tyler as well, and hired some part-time nursing students at the University of Texas’ Tyler campus to work on a product it was beta-testing.

The tech companies in the case asked to transfer the case to California, but Judge Leonard Davis, who is overseeing the case, refused to allow it. After all, Davis reasoned (PDF), Eolas picked six defendant companies that were based in Texas, including four—Perot Systems, Frito-Lay, JC Penney, and Rent-A-Center—that were headquartered in Plano, a Dallas suburb which is within the Eastern District of Texas. Davis also declined to let the case be divided up, saying it wouldn’t promote "judicial economy."

And that’s how Berners-Lee ended up testifying to an eight-person jury in East Texas on Tuesday morning, restating to some degree an argument he made in Scientific American in 2010—that patents could be a serious threat to the future of the Web. In the Eolas case, it looks like Berners-Lee’s nightmare may be about to come true.

The new Eolas suit has also put the University of California in an unprecedented and awkward situation, as a not-so-silent partner to Eolas’ increasingly widespread, and controversial, business. While the UC could reap many millions from an Eolas win, it is suing the world’s biggest internet companies—the same companies that recruit its students, and are enmeshed with the UC in many other ways. The plaintiff’s lawyers have been referring to the patents as the "university patents" and make reference to the innovative history of the UC to make their case to the jury.

What happens next

The Eolas trial is actually scheduled to be four back-to-back trials in Tyler. In the first, a jury will determine whether the patents are valid or not; if Eolas survives that stage, it will get to go on to sue the eight remaining defendants in three successive infringement and damages trials. The jury may get the first case by Thursday, and could have a decision before the weekend.

And if Eolas and the UC are successful, the companies gathered in Tyler this week will likely be just the beginning of a long list of targets who will end up paying Eolas millions of dollars to use the Web.

The federal justice system together with the flexible interpretation of laws in the States is an insane concept. 99.9% of all justices may be completely well meaning and sane persons but you only need a couple idiots to throw the whole system out of whack.

In a sane country some guy in Washington would watch what is happening in Texas for a while and then fire the whole sad bunch. But no justices need to be elected and independent and all that bullshit.

Its actually sad but sometimes I wonder if all those lobbyists are actually as powerful as people make them up to be.

At least it's Tyler and not Marshall, like most of the rest of the patent troll cases. Tyler is still a small city, but there is some money there, and a chance that you could find jurors who have a clue about technological issues. Marshall is a dying blue-collar rural town with very few tech related jobs, and a jury pool where a lot of them probably can't read, much less have a clue about the internet or patents.

Patents last for 14 years, right? So this steaming pile should lost its patent in November of this year.

The lawsuit was filed before that though, and is for infringement in an earlier time period, so it expiring now is irrelevant. Otherwise, all it'd take to avoid a patent infringement suit is to drag it out for long enough, assuming the expiration is close.

Reading thorough the patent linked in the article, it is amazingly generic in its terminology. I understand this is how filings usually are (patent lawyers try to make it as generic as possible to "widen the snare" if you will) ... but, at what point does someone in the US PTO stop and really think it through?

Patents should be about the actual implementation of ideas and not ideas themselves. That would automatically eliminate software patenting - for the actual code, copyrights should suffice.

Even if we were to maintain software patents: then, in this context for example, if one has an idea to implement a remote viewing program using a distributed network - then something concrete in the implementation (such as the application code) should be patented and not the general idea of how to do it. If someone else can come up with a different technique/implementation to achieve the same result, that should be permitted.

but, at what point does someone in the US PTO stop and really think it through?

At this point, pretty much never. They don't seem to have patent inspectors familiar with the area they are are working in, and they don't publicly solicit help before granting patents either. They seem to work on a "hmm, that sounds reasonable" basis

'Groups that felt the impact of the patent started to take action. The W3C, the global Web standards group, contacted the patent office directly, sending a letter signed by Berners-Lee warning that unless the Eolas patent was invalidated it would cause the "disruption of global web standards" and cause "substantial economic and technical damage to the operation of the World Wide Web.'

Well the patent was not invalidated. If the Web was disrupted, I failed to notice it. There does not appear to be much doubt that this case does involve a patent troll. But, patent troll's only make money by taking a cut of a successful business. Some people surely do get money that they have done nothing useful to earn. But that is the way that patent law has worked. If it has actually had any real negative impact on the development of software technology, I have failed to notice it. The Europeans seem to be raising the bar some in the Microsoft vs Barnes and Noble case. So perhaps there will be some change. Otherwise, some patent trolls will continue to be among the many within the 1% who manage to get richer than their real contribution deserves.

This is great news actually I hope Eolas and other keep it up. Punish the tech companies that file hundreds of trivial and obvious software-patents and try to keep new players out of the marketplace. When I see Apple and Microsoft using these tactics against open source I say they get what they deserve. Fuckem.

This is great news actually I hope Eolas and other keep it up. Punish the tech companies that file hundreds of trivial and obvious software-patents and try to keep new players out of the marketplace. When I see Apple and Microsoft using these tactics against open source I say they get what they deserve. Fuckem.

So, if the ViolaWWW browser developed the ability to display tables, inline graphics, and similar features in 1993, and this patent was applied for in 1994, how is it possible to move forward with an infringement case? Wouldn't the patent be invalid due to prior art?

but, at what point does someone in the US PTO stop and really think it through?

At this point, pretty much never. They don't seem to have patent inspectors familiar with the area they are are working in, and they don't publicly solicit help before granting patents either. They seem to work on a "hmm, that sounds reasonable" basis

Been that way for years for software copyrights and patents. There just isn't enough subject matter experts within their ranks.

This is great news actually I hope Eolas and other keep it up. Punish the tech companies that file hundreds of trivial and obvious software-patents and try to keep new players out of the marketplace. When I see Apple and Microsoft using these tactics against open source I say they get what they deserve. Fuckem.

So, if the ViolaWWW browser developed the ability to display tables, inline graphics, and similar features in 1993, and this patent was applied for in 1994, how is it possible to move forward with an infringement case? Wouldn't the patent be invalid due to prior art?

Even better, according to Wikipedia, ViolaWWW was first released in March 1992, which is a clear year before that Chicago thug's claims of having developed it during his time at the University of California in 1993.

What I have to ask is this: Is there not a statute of limitations on infringement?

It seems incredible that it's taken them this long to get around to noticing images on the web and images that "could be interacted with"? Nothing in the claims for the patent jumps out at me as something that's unique to any browser in the last 15 years or so. It seems virtually impossible for them to have not noticed the ubiquity of what's being done.

At the very least, we really need to get away from the "change a few noun and it's a new invention" type of patents. The ones where they simply take what's being done elsewhere, slap the word "browser" or "online" in a few places and call it an invention. Even if I can see a slim case for some patents being legit, it also seems to me that an awful lot of patents were granted by the USPTO in the 90s for very,very similar browser features.

This is great news actually I hope Eolas and other keep it up. Punish the tech companies that file hundreds of trivial and obvious software-patents and try to keep new players out of the marketplace. When I see Apple and Microsoft using these tactics against open source I say they get what they deserve. Fuckem.

Wat.

He seems to be saying that the companies being sued are abusive of their patents, so turnabout it fair play. Also, if this patent does pose a threat to the web, then legitimate reform of patents, particularly in regards to software, might come about in the aftermath. Probably not, though, given the number of large players that want the web to be a walled garden.

Can we at least start treating patents like trademarks? If you don't use it you lose it? This trolling business is really insidious, and it obviously doesn't help "spur innovation." Just the opposite in fact.

Another week, another stupefyingly vague and obvious patent granted by (as has been said) the clueless muppets at the PTO. How is "Hmmm - we could show video in this window" non-obvious?? This isn't a patent of streaming codecs or packet handling - it's just an idea.

But getting Congress to actually do something about it? Ah ha ha. Too busy passing bills defining apple pie as the only true pie, or somesuch other important work.

'Groups that felt the impact of the patent started to take action. The W3C, the global Web standards group, contacted the patent office directly, sending a letter signed by Berners-Lee warning that unless the Eolas patent was invalidated it would cause the "disruption of global web standards" and cause "substantial economic and technical damage to the operation of the World Wide Web.'

Well the patent was not invalidated. If the Web was disrupted, I failed to notice it.

You failed to notice it because no action has yet been taken. Now is where the action phase begins. Also, it doesn't mean the patent is valid - that's the first phase of the overall trial.

But there is still prior art and the patent in question dates to 1994 and I know I was looking at "images" on the Web prior to that. . .

Quote:

There does not appear to be much doubt that this case does involve a patent troll. But, patent troll's only make money by taking a cut of a successful business. Some people surely do get money that they have done nothing useful to earn. But that is the way that patent law has worked. If it has actually had any real negative impact on the development of software technology, I have failed to notice it. The Europeans seem to be raising the bar some in the Microsoft vs Barnes and Noble case. So perhaps there will be some change. Otherwise, some patent trolls will continue to be among the many within the 1% who manage to get richer than their real contribution deserves.

MS vs. B&N isn't a patent-troll case. They both make products involved . . . in this case it's a poor patent that will cost us, the consumers, money and will mean that everyone who develops for the Web in any interactive fashion will owe Eolas money. That will stifle - well, everything.

Your reaction is short-sighted. You work for Eolas? Or perhaps the UC?

"But there is still prior art and the patent in question dates to 1994 and I know I was looking at "images" on the Web prior to that. . ."

IANAL, but i just read his claims on the patent, and they seem to be very specific about a client receiving a document, parsing and recognizing its format, then triggering an external program to execute and display a portion of the document.

It's of like you tube page triggering flash to run an object, or java applet. Did you experience any of these back in those days?

This is great news actually I hope Eolas and other keep it up. Punish the tech companies that file hundreds of trivial and obvious software-patents and try to keep new players out of the marketplace. When I see Apple and Microsoft using these tactics against open source I say they get what they deserve. Fuckem.

Wat.

He seems to be saying that the companies being sued are abusive of their patents, so turnabout it fair play. Also, if this patent does pose a threat to the web, then legitimate reform of patents, particularly in regards to software, might come about in the aftermath. Probably not, though, given the number of large players that want the web to be a walled garden.

Turnabout is absolutely fair play, so long as people then admit they fully support the current patent system and how it is used in cases like Apple vs everyone, Microsoft vs Android, etc.

It's not reasonable to decry the current system in one case and support it in another.

I'd rather see real reform, but I see a few people support the system we have now.

One thing that really stinks here is Microsoft SETTLING with these fellows, instead of slaying the dragon in the first place. No doubt, they factored into their calculations, the collateral damage this troll might do to their competitors, if they dealt them a non-mortal blow...

This is the exact same thing Apple did with that company that tried suing Apple over in-app purchases. They could easily have invalidated the patents. Instead, they avoid their rightful day in court, for two reasons:1. They don't want to end up fighting against the patent system that unfairly supports their hegemony over the entire software ecosystem, or fighting lawsuits that will only demonstrate how rotten the entire software patent system really is.2. The mega-corporations want the trolls to live on, destroying their emerging competitors...

Can we at least start treating patents like trademarks? If you don't use it you lose it? This trolling business is really insidious, and it obviously doesn't help "spur innovation." Just the opposite in fact.

Let me play devil's advocate: If you don't have the money to develop a business around your invention you loose the patent rights. So we move from $10,000s required today to file for a patent to $100,000s if not millions to build a business. And that is progress?

I hate patent troll as much as anybody, but that does not sound like a fix to me.